Q: My ex-wife took our son to stay with her parents in Scotland at Christmas, despite the family court issuing an Order when we divorced which said he should spend alternate years with me. This happens every year. She just blatantly breaks the Court Order and gets away with it. What can I do?
A: A Child Arrangements Order (formerly called a Contact Order) made by the family court on or after 8 December 2008 will contain a warning notice about the consequences for someone failing to comply with its terms. A Contact Order issued on or before 8 December 2008, however, will not contain such a warning notice and will require an application to the Court for one to be attached. This is to ensure that the person who has failed to comply with the Order has been made aware of the consequences of non-compliance.
If one or any of the persons to whom compliance with the Order is required breaches the terms of the Order, the other party or parties can apply to the Court for enforcement. The Court must then be satisfied beyond reasonable doubt that the person in breach has failed, without reasonable excuse, to comply with the Child Arrangements Order.
In arriving at its decision the Court has to take into account the welfare of the child concerned and be satisfied that the making of any order is necessary to ensure compliance and that the enforcement order is proportionate to the breach. Where it is found that a person has failed to comply with a Child Arrangements Order the Court can consider whether to make an Order which requires the person who has breached the order to be punished. This can include undertaking between 40 – 200 hours’ of unpaid work. A Solicitor with specialist Family and Child Law experience will be able to advise you on each step of the procedure.